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Harris v. Travis

May 7, 2007

WALTER HARRIS, PLAINTIFF,
v.
BRION D. TRAVIS, INDIVIDUALLY AND IN HIS REPORT FORMER CAPACITY AS CHAIRMAN OF NEW YORK AND STATE BOARD OF PAROLE, MARIETTA GAILOR, INDIVIDUALLY AND IN HER CAPACITY AS A COMMISSIONER OF NEW YORK STATE BOARD OF PAROLE, AND KEVIN G. LUDLOW, INDIVIDUALLY AND IN HIS CAPACITY AS A COMMISSIONER OF NEW YORK STATE BOARD OF PAROLE, DEFENDANTS.



The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

DECISION and ORDER RECOMMENDATION

JURISDICTION

The following matter was referred to the undersigned by the Honorable Richard J. Arcara on April 9, 2007 and is presently before the court on Defendants' motion to dismiss filed May 3, 2006 (Doc. No. 9), and Plaintiff's motion to supplement filed January 16, 2007 (Doc. No. 14).*fn1

BACKGROUND AND FACTS*fn2

Plaintiff, Walter Harris ("Plaintiff"), was committed to the New York State Department of Corrections on December 9, 1980, based on a conviction for Murder in the Second Degree, Manslaughter in the First Degree and Robbery in the First and Second Degree with a sentence of concurrent terms of imprisonment of 15 years to life. Plaintiff's convictions arose from an assault and robbery of an elderly couple in their home by Plaintiff and an accomplice resulting in the death of one victim and confinement to a nursing home of the other. Since Plaintiff's incarceration commenced, Plaintiff has appeared, between December 1994 and December 2002, before the New York State Board of Parole ("Parole Board") on five occasions.

On November 17, 2004, Plaintiff commenced this 42 U.S.C. § 1983 ("§ 1983") action against Defendant Travis ("Travis"), individually and in his former official capacity as Chairman of the Parole Board, Defendant Gailor ("Gailor"), individually and in her official capacity as a Commissioner of the Parole Board, and Defendant Ludlow*fn3 ("Ludlow"), individually and in his official capacity as a Commissioner of the Parole Board ("Defendants"), alleging Defendants' decision to deny Plaintiff parole violated the Due Process and Equal Protection Clauses of the United States and New York State Constitutions. Specifically, Plaintiff claims Gailor and Ludlow deliberately, intentionally, maliciously and knowingly failed to exercise their duty under New York law in denying Plaintiff parole on December 11, 2002 and that Travis (1) allowed a policy or custom under which unconstitutional practices occurred and allowed such policy or custom to continue, thereby exhibiting a deliberate indifference to Plaintiff's rights under New York law; (2) acted with gross negligence in managing Gailor and Ludlow who caused unlawful conditions and events to impair Plaintiff's right to parole, contravening duties under state law; and (3) failed to act on information indicating Plaintiff was being subjected to unconstitutional acts by Gailor and Ludlow.

Plaintiff seeks declaratory relief that Defendants violated Plaintiff's rights as alleged. Plaintiff also seeks injunctive relief ordering a de novo parole hearing on Plaintiff's eligibility for parole before a new Parole Board with different commissioners than those who denied parole in December 2002,*fn4 prohibiting Defendants from retaliating or transferring Plaintiff to any other institution without his consent and removing from Plaintiff's parole file references to the events alleged in the Complaint.

On May 3, 2006, Defendants filed the instant motion, pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. No. 9) ("Defendants' Motion"), along with a memorandum in support (Doc. No. 10) ("Defendants' Memorandum"). In opposition to Defendants' Motion, Plaintiff filed, on July 6, 2006, a motion to supplement the Complaint ("Plaintiff's Motion") (Doc. No. 13), a memorandum in support ("Plaintiff's Memorandum") and a memorandum of law ("Plaintiff's Response") (Doc. 14). In opposition, Defendants filed, on February 23, 2007, a response ("Defendants' Response") (Doc. No. 17). Oral argument was deemed unnecessary.

Based on the following, Defendants' Motion should be GRANTED and Plaintiff's Motion is DENIED.

DISCUSSION

1. Motion to Dismiss

A. Due Process

On a motion to dismiss for failure to state a claim, the court looks to the four corners of the complaint and is required to accept the plaintiff's allegations as true and to construe those allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Village Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995), cert. denied, 519 U.S. 808 (1996); Hill v. City of New York, 45 F.3d 653, 657 (2d Cir. 1995). The court is required to read the complaint with great generosity on a motion to dismiss. Yoder v. Orthomolecular Nutrition Institute, 751 F.2d 555, 558 (2d Cir. 1985). A complaint may be dismissed only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The issue is not whether a plaintiff is likely to ultimately prevail, "'but whether the claimant is entitled to offer evidence in support of the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.'" Weisman v. LeLandais, 532 F.2d 308, 311 (2d Cir. 1976) (quoting Scheuer, 416 U.S. at 236).

Plaintiff asserts numerous claims, essentially alleging Defendants violated Plaintiff's due process and equal protection rights guaranteed by the Fourteenth Amendment and under Article 1, ...


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